Author: sam

01 Nov

Posted at 00:00h in Collaborative Practice

The International Academy of Collaborative Professionals annual forum was held in Washington DC in October 2015. Bev Clark was privileged to attend. The calibre of the speakers was excellent. The international forum is attended by hundreds of collaborative professionals from around the world. This year’s forum was particularly important as it celebrated the 25th anniversary of the process since inception. Bev is very proud to be part of the promotion and development of Collaborative practice in South Australia. Collaborative Practice is a cost-effective, problem-solving approach that can minimise the impact of conflict on parties and their children. Parties are guided and supported by professionals with the right expertise to achieve the best possible outcome. The parties are guided and empowered to make a sound, long-lasting decisions that stand them in good stead for years to come. The Collaborative process preserves their privacy and dignity while giving parties the best possible chance of resolving their dispute respectfully – and the results are legally binding. So why choose Collaborative Practice? Avoid long, difficult and often expensive Court battles Focus on problem-solving and finding respectful solutions Create personal, cost-effective solutions that are right – and tailor-made –  for the family Protect the well-being and needs of the children Maintain decision making...

01 Oct

Posted at 00:00h in General

Case review: Stack & Searle [2015] FCWA 44 In the recent decision of Stack & Searle, the Family Court of Western Australia considered the important issue of whether a parent’s past behaviour exposes a child to an unacceptable level of risk. In March 2008, Mr Stack was arrested and charged with one count of indecent dealing with a child who was a lineal relative, four counts of possession of child pornography and one count of supplying child pornography. In October 2009, he was sentenced to three years imprisonment. Mr Stack was ultimately released from prison in July 2012. Two years later, in June 2014, Mr Stack was charged with one count of sexual penetration of a child under 13 years and one further count of indecent dealing with a child under 13 years in respect of incidents that were alleged to have occurred in 2006. Mr Stack and Mrs Searle had two daughters aged 14 and 12. Mr Stack applied to the Family Court for orders allowing him to spend supervised time with the children each fortnight, and to communicate with them by telephone and in writing. Mr Stack argued that he had always played an active role in the children’s lives but...

01 Aug

Posted at 00:00h in Wills & Estates

From LEXOLOGY July 2015 Many people assume their existing Will automatically deals with their discretionary trust and superannuation assets. Our firm raises with clients that these assets usually are not automatically dealt with under their Will and special attention needs to be given. The truth is these assets may or may not end up being dealt with under people’s Will. Therefore, it is important that they are dealt with in the way the law allows to ensure they end up with the persons you intend. The main considerations relevant to an estate plan include: Dealing with control of a discretionary trust –  check the powers of appointment in the trust deed (if any) and ensure that the power of the appointor can be passed onto a person of the appointor’s choosing under their Will; consider whether the trust deed needs to be amended to allow for this. Who are the beneficiaries? –  check who you want to receive the trust assets and ensure that those persons are beneficiaries in the trust deed. We can advise when making Wills what can be done to achieve these wishes. Superannuation – check to see if a valid binding death nomination has been made (in addition to taking proper financial advice...

01 Aug

Posted at 00:00h in General

From Workplace Bulletin 27 July 2015 The misclassification of employees as contractors has become a hot topic lately both in the media and in Courts. Businesses hire people to carry out work every day, from secretaries to cleaners to IT professionals – and their legal status will vary. What are the essential criteria? A ‘sham’ independent contractor arrangement is made when one or both parties know, or ought to reasonably know, that it is not a true independent contractor arrangement. You can be liable under the Fair Work Act for civil penalties if you are unsure of the distinctions. Businesses need to be aware of some of the key indicators that the Fair Work Ombudsman and the courts would expect including: The level of control over the working relationship; Tax arrangements; and How the worker is paid. Note that no single indicator will clearly determine a worker’s status. Employers (and employees!) can attempt to arrange their taxes to unlawfully claim an independent contractor relationship. As always, if employers are unsure, they should seek legal advice. For more information on whether you have employees or contractors in the workplace contact Roy Hasda at Belperio Clark on 8212 1322 or email roy@bc-lawyers.com.au...

01 Jul

Posted at 00:00h in General

From Workplace Bulletin 15 June 2015 Every 4 years, the 120 modern awards that cover Australian employees are reviewed under the Fair Work Act by the Fair Work Commission (FWC). Las week changes were announced to annual leave. They include: Changes to how annual leave can be cashed out; Likely changes to when employers can direct employees to take leave; Likely changes to when annual leave can be granted in advance, and; Provision for annual leave to be paid as part of the employee’s ordinary pay cycle if they are paid by electronic funds transfer. What’s changing with cashing-out annual leave? The Commission has agreed to include a general term in modern awards that will let employees cash-out a maximum of two weeks leave per every 12 months. What’s changing with excessive accrued leave? Subject to submissions from interested parties the FWC has developed a new model clause that defines an “excessive leave accrual” as 8 weeks for non-shift workers and 10 weeks for shift workers. If an employer and employee can’t agree on how and when leave will be taken, the clause gives an employer the power to direct an employee to take a period or periods of annual leave. What’s changing with taking leave in advance? The FWC accepted a...

01 Jul

Posted at 00:00h in General

We are still hearing about cases where people are consulting lawyers rather than Notaries for documentation required in an international arena. Some lawyers are unaware of the Notary requirements to the detriment of their clients. Are you involved in an inheritance from a foreign country? Do you want your academic/trade qualifications recognised overseas? Do you want to marry overseas? For all these areas the chances are you will need a Notary Public NOT a lawyer. There are three significant differences between notaries and other lawyers: a) a Notary’s duty is to the transaction as a whole, and not just to one of the parties. A Notary may act for both parties to a transaction provided there is no conflict between them, and if so it's their duty is to ensure that the transaction that they conclude is fair to both sides. b) a Notary will often need to do a Notarial Certificate for a document in order to make it valid for use overseas. Often it may also be necessary to obtain either an “authentication” or an “Apostille” (depending on the relevant foreign country) from DFAT. c) a Notary identifies themselves on documents by their individual seal. Such seals have historical origins and are regarded...

01 Jul

Posted at 00:00h in General

Franchises cover the selling of Burgers, Coffee, Home Services, Automotive repairs, the running of Beauty Salons and many other products and services.  There are currently 1,160 franchise systems and 79,000 franchise units trading in Australia (ACCC 2014).   It is a $144 billion sector in Australia, (Franchise Council of Australia 2015). If you are in or propose to enter this major business sector then join us in exploring the Franchising World since the changes which came into operation on 1 January 2015. This workshop will cover What you should look at before becoming a franchisee What a franchisor should look to review and update in light of the new Code An overview of the new Franchising Code of Conduct 2014 Attend at the Eastside Business Enterprise Centre workshop on 5 August 2015 where Eugene Reinboth will be facilitating. Registration is open at http://e.mybookingmanager.com/BelperioClarkLawyersAug15...

01 Jul

Posted at 00:00h in Family Law

A fabulous short video has been launched featuring South Australian parents, and quotes from children, to illustrate the challenges that many separated families face. Often in family breakdown the voice of the child is lost – and this video assists to ensure that their voice is the central focus. This video is a great tool for parents going through a separation....

01 Jun

Posted at 00:00h in Commercial Law

“It is quite common these days for various restraint clauses to be inserted in agreements such as for the sale of businesses and employment contracts. The intention is that the purchaser of the business does not wish to lose the clients of the business to the former owner and therefore lose some of the income from the business. Similarly, employers attempt to prevent departing employees from taking clients of the business or fellow employees with them. This is done by the use of what is commonly referred to as non-competition and non-solicitation clauses in the employment contract. These clauses generally deal with the scope of work or activity which the person is prevented from undertaking. They also set out the period and area in which the activity is prohibited. As a general rule, restrictive trade covenants are unenforceable because they impede freedom of trade and the individual liberty of action in trading. There are exceptions to the rule. Care needs to be taken with the drafting of such clauses. In a recent case, the employer sought to enforce the restraint of employment and non-solicitation covenants. At the end of a nine-day trial, the employer was fortunate the Court limited the application of...

01 May

Posted at 00:00h in Family Law

When you are going through the pain of a divorce or separation it is sometimes hard to imagine a future where the hurt and the pain is a distant memory. To guide you through the tough times it may be helpful to commit aspirations that may keep you on track to that amicable divorce you want to achieve. The following are ideas that may assist you in creating your own aspirations checklist: At the end of my divorce, I want the following to be true:  I was honest and had integrity throughout the entire process;  My former spouse and I were kind to each other;  My children are supported by two parents who are able to cooperate in co-parenting;  We did not need to go to Court to settle our differences;  We spent as little money as possible on our separation process and preserved our assets for ourselves and our children rather than paying for expensive litigation;  My former spouse and I were fair to each other in the division of our assets and resources;  I respect my former spouse;  My relationship with my former spouse is friendly, civil and respectful;  My children were not exposed to conflict between their parents;  I...

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